The Supreme Court of Maine held, in a case of first impression, that a spousal loss of consortium claims is a separate and independent cause of action that need not be joined with the underlying negligence claim.

In this case, wife was mistakenly diagnosed with breast cancer. Soon after the error was discovered, she and husband divorced and the court awarded husband his loss of consortium claim. Wife filed a malpractice action, gave her ex-husband notice of the suit and her intent to settle her claim. He did not join the action. When husband later sought to bring his claim, the trial court granted the defendants summary judgment on the basis of res judicata.

The Maine Supreme Court reversed. After reviewing the basic nature of a loss of consortium claim under Maine law and the approaches taken by other states, the court concluded that the consortium claim is a separate and independent action which is not lost by failure to join in the underlying action. Two judges dissented, arguing that the better policy was to require joinder. Especially in the facts of this case, they commented, where “We should not approve [Husband’s] willful delay in asserting his consortium claim, which had the effect of delaying, complicating, and increasing the cost of this action and the separate divorce action.”